Tag: youth crime

I have a dream about what I would do if I were to ever win the lottery or otherwise have the good fortune to sign my own paycheques, as it were.

I would travel the province and country for at least two full years to examine the youth justice system as only considerable time and complete, undivided focus, could allow.

I spoke last week to a great group of University of Winnipeg students who are studying the justice system, the court process and criminal law procedure in depth.

They’re looking closely at issues including disclosure, wrongful convictions and other serious systemic problems that can happen and, why.

It was only in the dying minutes of my time with them that I remembered the most important thing I wanted to tell them.

That being: When it comes to youth justice and all that entails in the true meaning of the word “justice,” I believe we’re failing and we either need to do better or find new tools and ways of doing things. I’m just being honest.

We’re not failing in the sense that there aren’t great people, from correctional officers and social workers to lawyers and judges, grinding it out every day, doing the best with the resources they have to work with. There are, and they don’t get nearly enough attention or accolades for their work.

I mean we’re failing systemically. In terms of the Youth Criminal Justice Act’s stated intent to promote a just and safe society and long-term protection of the public by focusing on rehabilitation, and not punishment, as a first principle for young offenders, who have diminished moral culpability because of their ages.

More importantly, we’re failing in how the youth criminal and child-welfare systems intersect and don’t appear to share each other’s objectives.

Well, they may in principle. But in practice, as I’ve continually seen over the years, it’s a very different reality entirely.

I’ll give you just one small example of this.

I call it the ‘how kids fall into a black hole’ scenario. Followers of my blog over the years are familiar with my coverage of this issue, how youth jails become ‘warehouses’ for child-welfare and mental health concerns

This sad drama appears in various permutations, but almost always involves a bewildering and (I say) shameful lack of communication and co-ordination between Child and Family Services and the criminal youth justice system.

Interestingly, it’s seldom that you can just point a blaming finger over this issue – and that’s not my intent here, really. But it never seems to change.

Here’s this week’s example. One where it takes a little time to tease out all the complexities at play. Apologies.

It also bears mentioning that as a member of the public, one doesn’t often get the full, fleshed-out picture in youth court.

Due to CFS privacy and YCJA access provisions, there’s no opportunity to access reports and other documentation which could provide greater detail as to what’s really happening. So you’re left sometimes with what you’re left with in terms of what the various actors put on the record.

But the lack of access to documents doesn’t mean that the issues aren’t valid, that they’re somehow just misunderstandings borne out of a lack of public disclosure.

The problems are real.

In the spring of 2013, the parents of a criminally-involved 14-year-old (‘DD’ we’ll call him here) sign a voluntary placement agreement with CFS for six months. His folks have seven other kids at home and DD’s acting out causes them to ask CFS for help. CFS – Southeast CFS to be exact – steps in to take him.

He’s the only one not living in care (save for an older sister who also came into care due to a pregnancy). He has suspected FASD and ARND, cognitive issues which make him more apt to act impulsively.

In his own words: “I do before I think.”

In May, he’s handed a year of probation for a break-and-enter, failure to appear in court and failing to comply with a bail order. The sentence, given that it’s his first-ever, is a year of probation. In June, he’s arrested again for breaching probation and given a few hours of community-service work.

In September, he pleads to more probation breaches and gets more community-service hours.

What’s important to note: The probation breaches are all because he leaves the various emergency hotel shelters CFS is routinely placing him in, often returning home because he’s upset at the fact all his siblings remain there and he’s not.

Since he came into care, he’s been shunted between eight hotel placements.

It’s not all CFS’s fault for this, however. Court hears more “stable” foster placements can’t be had for him until he gets his behaviour in check. Yes, he’s 14, but some of the responsibility has to fall on his shoulders.

But arrested again in early October, DD plummets into the black hole.

It happens like this: The Crown, rightfully, won’t consent to bail him out unless CFS comes up with a better residence plan than hotel rooms for him to live in.

And it’s pretty clear to the defence it would be a hard sell to a judge to release him if there’s nothing new in DD’s bail plan to satisfy the court it just won’t all end up with him collared again and returned to the Manitoba Youth Centre.

But at the very same time, the skimpy nature of DD’s criminal past and the current charges he’s facing makes himineligible for custody at all if he were to just plead guilty and deal with his charges. In essence, we’re criminalizing a child, largely because of systemic factors beyond his control. I see that as a big problem.

And CFS, you ask? They’re hard to track down.

Now, over the years, I’ve heard more than a few defence lawyers complain that they can’t get CFS down to court to answer questions about one of their youth clients.

Despite their complaints, I can count on one hand the number of times I’ve actually seen a judge subpoena a social worker — no small thing — to attend and talk about what the heck is going on with a young person.

It happened this week in DD’s case. On Tuesday, the case comes up in the afternoon, and Judge Catherine Carlson is told his defence lawyer was asked by another judge to call DD’s social worker and get her to come to court and answer questions about the hotel “emergency” placement plan for him. The CFS worker, in the past, had been in court to support him.

The lawyer is candid, says she called and the worker replied, “she’s not available today — she’s not available any day this week and the earliest she could attend is Tuesday (the 12th). And so, she’s not available to the court.”

As well, there is no non-hotel plan available at this time, the lawyer says she was told.

The worker was asked if there was a day she could “squeeze into her schedule” but the lawyer was still awaiting a call back to see if that was possible.

Is there anyone else from the agency that could come? Carlson asks. This isn’t likely. Before her, Carlson has an in-depth forensic psychology report outlining the concerns with DD and CFS’s continued use of a hotel-placement plan for the future.

The Crown relays its position again. It would consent to DD’s bail if there was a “proper plan” in place, but, “we’re doing (DD) a failure because we keep returning him into the same poor circumstances,” the prosecutor says. The hotel placements are “not adequate.”

He says the court has the option of mandating CFS to attend.

“I think that what’s troubling to me is the worker did come down and express concerns, which is why the forensic (report) got ordered. But then she didn’t participate in the forensic and… it seems… that just at this point there’s more questions than answers… I guess we’re stuck.”

“Somebody’s got to come down and answer what’s going on here.”

Judge Carlson agrees: “To say that she’s unavailable till Tuesday is concerning knowing that there’s a young man in custody and needs a better plan.”

So, a subpoena ordering the worker into court for Thursday is drawn up.

That day, the worker duly appears, and hears now from Judge Carena Roller.

“There is, for whatever reason, a lack of plan… he’s remaining in custody when he’s not eligible for custody. That’s a problem for me,” Roller says.

The forensic report hints at the fact an undiagnosed medical or psychological issue is at play in DD’s situation, an issue preventing him from complying with his court orders and therefore prompting his return to custody.

“The irony is we don’t know that because there was no response from the agency, no background provided to the assessor,” Roller says.

Ah, the worker says, that’s not entirely true. She was in touch with the doctor who assessed DD. There was another report done. The other one wasn’t prepared for court purposes and looked at his needs in the community. The worker insists that second report was sent to the doctor who did the forensic evaluation.

Regardless, DD’s impulse control is “severely impaired,” the worker says. It’s possible medication may help calm him — but doctors won’t prescribe it until they’ve had up to three weeks to observe his behaviour. That’s been a problem because DD goes AWOL, she says.

As for where he’ll live upon release, the worker says as follows: “Placement is determined on the day of release based on what beds are available in the system. I can tell you what’s available today, but I couldn’t tell you what would be available on a different day.”

What’s available today, Roller asks.

“An emergency shelter.”

Is that 24-hour supervision?

“No. The shelter we’re talking about is a 16-bed emergency shelter where he would be expected to attend the day program (school)… we haven’t been able to register (DD) in school because he tends to be AWOL before we can stabilize a program,” the worker says.

Why aren’t we talking about a locked setting then?

“For that to happen, we need a social history and approval for that level of funding,” says the worker. “We haven’t had that yet. Now, with these reports, we’re more able to support that application. And that is definitely a plan underway.”

When asked, the worker couldn’t say what date DD’s six-month voluntary placement with CFS expires. “Probably” in the next couple of months, she says.

Roller is curious (as we maybe all should be about a child in care): Why doesn’t CFS already have a social history on DD?

The worker’s answer is evasive. “In order to apply for locked facility… we have to be able to support it by behaviours,” she says.

The hearing is then stood down for a few minutes. A behind-the-scenes discussion results in DD pleading guilty to a handful of breaches and being sentenced to a few extra hours of community service work.

In his sentencing submissions, the Crown sounds unconvinced anything will change. Some of DD’s issues are systemic, he says. Candidly, some are also his as an individual, he says.

“Best we can hope is he goes on his way and starts to listen to his probation officer.”

DD’s defence lawyer tells Roller the youth is confused and upset at the fact he’s not allowed to be at home with his family and that’s why he flees from his hotel placements.

“He thinks that if he acts out and leaves these shelters they’ll give in and let him go home – that’s not the case,” she says.

By now, he’s spent three weeks of his life in custody. The lawyer questions how it appears the CFS position on finding a proper placement is somewhat incumbent on him, based on what the social worker has said. It shouldn’t be “all on him” to prove his way out of the emergency hotel shelter situation, the lawyer says.

“It’s turning out to be… a vicious, vicious cycle.”

In addressing DD, Roller seemed to agree.

“I know that you haven’t had a stable placement since you came into agency care,” she told him. “And I’m convinced that the people who are working with you aren’t talking to each other like we need them to do. We need you to have a team in place to work together and I hope that’s what’s going to happen going forward. Because we need your behaviour to improve,” she said.

She also reminded him of his CFS worker’s implicit promise to the court to get moving on finding a more palatable solution for him, to find him at least a place, “where you can unpack.”

“And she’s going to do all of that right away because we don’t want you bouncing around,” said Roller.

———————–

If you’re still with me by now, you’ll have perhaps noted some of the questions DD’s case — but one of many hundreds of youth court cases in Manitoba — raises.

At the top of my mind are:

How can a child be taken into agency care and the agency doesn’t have a “social history” on him months into his stay?

What exactly is a “social history?” It was clear his parents called in CFS, so why don’t they have such information at hand?

How can a social worker be subpoenaed into court and not have exact answers (like the date of expiry of DD’s placement agreement) at hand about the case she’s there to talk about?

Is a hotel room for a potentially mentally challenged and certainly confused teen boy really the best we can do for him? It personally strikes me as disingenuous to say it’s somewhat incumbent on DD, given the circumstances as presented, to “earn” his way out of the emergency shelter system. If it’s the case that it is, then isn’t that a problem? It strikes me DD was stopped into care by way of a voluntary agreement with no case planning as to what to do with him once he was there.

What prevented the two systems from “talking” to each other in this case and perhaps finding a better — or at least more expedient — outcome here? Resources? Stubbornness?

We can say “justice” has been served in the sense that a sentence was meted out, but I think we all know it wasn’t here. I fully expect to see DD back on the court docket in the coming months.

There’s many, many more questions, obviously. Finding answers without taking a long and focused look will be impossible.

The “vicious, vicious cycle” will continue until there’s pressure enough to end it.

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There’s possibly fewer things as despairing in our youth justice system than witnessing a young future handed over to an overtaxed and overstressed mental health system to figure out.

Thankfully, it happens relatively rarely, but it did happen this week to J.

He’s a now 18-year-old man who, despite signs of some hope in recent months, was deemed unfit to stand trial on some [relatively minor] charges and turned over to await disposition as to his treatment by the Criminal Code Review Board.

As his lawyer put it: “It is a life-altering verdict to him.” And it’s true.

Will he end up in a hospital or on the street? It’s unknown. Winnipeg Child and Family Services is involved and keen to find him assistance wherever it can, but an agency representative was noticeably absent at the Manitoba Youth Centre this week when Judge Sandra Chapman found J unfit and ordered him over to the CCRB. It was surprising because CFS had attended court hearings in the past out of a sincere wish to see him get help, Chapman was told.

J first came to the attention of police and the system on Jan. 9, 2012, when he and his mother got into a fight inside their home.

High on drugs, he became enraged to the point of threatening her. “I don’t care if you guys call the cops — I’ll take you guys all out and kill you,” J said, just before retreating to his bedroom.

Police arrive at the mom’s bidding and find him in his bedroom, high on the anxiety drug Restoril, mellow from marijuana and packing a small kitchen knife. He’s taken to the Manitoba Youth Centre. He gets bail.

Fast forward to Jan. 27, 2013: Police find him at 1:20 a.m. reeking of booze on McPhillips Street. Again, he’s a direct lockup at the MYC, then bailed out shortly after.

The final shot at release he saw ended around 11:50 p.m. March 3, while he’s now staying at a CFS “shelter” which also doubles as a hotel on Pembina Highway.

J became so angry with his CFS watcher he began assaulting him, then proceeded to take a chair outside and hurl it at the social worker’s car several times. Nothing was broken and the worker was uninjured. He was again detained at the youth centre.

And then the psychological assessments begin. Over the coming months, J would have three mental-health assessments conducted by doctors, two of which were tendered in court. The third was excluded because it didn’t deal with mental fitness-related issues.

After the first, it was considered he was “just being difficult,” and a “defiant young man.” One doctor found he “could be fit” at some time, but when, exactly, was naturally unknown. Time marched on.

Months later, J’s advocate told Chapman this week, it was clear the young man was “decompensating” — deteriorating — possibly because he was being held in a jail and had been there for a couple of months.

As one doctor put it: It was “no longer clear where the boundary line was between provocative behaviour (what the earlier doctor saw) and psychosis.”

In one example, the forensic psychiatrist said J would “stare (him) down.” The belief was J was now “presently actively psychotic” — a kid of 17 at that point who admitted he thought he could tolerate life inside Lakewood, the maximum-security youth facility in Manitoba.

There, inmates receive an hour of recreational time each day. The rest is spent in a locked room and under constant observation.

J said ‘no’ many, many times, when Chapman asked him the following: Do you know what’s happening here? Do you know what your lawyer is? Do you know what my role is?

Everyone — Crown, defence and Chapman — expressed reluctance at putting such a young man into “the system” [their words] on such minor charges. But there was little else to do.

Everyone involved hopes he’ll find his way to a hospital and adequate treatment from doctors. He was to be released as soon as practicable from the MYC.

But given some of the stories that have come to light about the mental health regime in Manitoba (and Canada, to be honest) of late, I can’t help but wonder if J is now simply to be cut adrift, possibly lost for good. Maybe institutionalized, possibly to be released and wind up on the street.

I note grimly that immediately, the court ordered the review board was to receive an extension of the time it is required to conduct a disposition hearing for J — to 90 from 45 days.

The ink’s not even dry on the paperwork, but already exceptions are being made.

And they’re not to accommodate J, but to accommodate the system. And it’s sad.

—————–

Also sad — and something I wasn’t aware of, is how two cells at the Manitoba Youth Centre are deemed “psychiatric beds,” a reality J’s lawyer called “completely unacceptable.”

What she meant, I believe: Jails are for criminals, suspected and otherwise.

“Psychiatric beds” are for sick people who need treatment, not incarceration.

As well, two beds at the above-mentioned Lakewood max facility are also designated for psychiatric-related inmates, court heard.

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When it comes to Manitoba’s youth justice system — and the unbelievably sad kids it often has to try and “fix” — I’ve learned one should take small successes and trumpet them.

And it dawns on me today that the case of K. falls into that category.

I wrote about K. — a high-needs permanent ward of CFS — a few months back. (It’s not her real initial).

Her tale triggered some consternation from regular readers of this blog (one commenter called the process of her case ‘disgusting’).

In a nutshell, K’s story was about what happens sometimes in our youth justice system — and the failures of systemic concerns outside the court process to live up to the wishes and requirements of the court; that the youth justice act specifically states the criminal justice system is not to be a proxy for child-welfare concerns.

You can read what little I know of K’s heartbreaking and concerning story here. And a follow up from a few days later here.

And it didn’t surprise me to learn last week that really, despite all this, nothing changed right away.

K. (remember, she’s 13 and an abuse survivor) was still released from the youth centre to go and live in a downtown Winnipeg hotel as Child and Family Services had no other placement for her.

(It’s partially her fault because her conduct had caused chaos at other bona fide foster placements, at another she was sexually abused and she was removed).

But the fact is the fact. Judge Mary Kate Harvie ordered specifically late last year K. was not to be placed by CFS or the provincial corrections department in a hotel and yet it continued to happen.

Another veteran judge, Marvin Garfinkel, lambasted lawyers and CFS over this continuing to happen in the spring and still, K. gets placed back in a hotel.

And again, this “plan” for her, however temporary the intention was for it to be, just didn’t work.

May 9, 2013: K. is at her latest hotel placement in downtown Winnipeg and a fracas breaks out with a worker over a perceived unfairness involving a cellphone. She lashes out, tosses a glass and hits the worker with it. After heading out of the hotel room, K. smashes a safety window, picks up a fire extinguisher and discharges it at another worker who tries to intervene in the hotel hallway.

Cops are called. She’s hauled off back to the youth centre and held in custody for what was termed a “freak out.” It seemed the cycle was simply doomed to repeat.

But then, something changed. Island Lake CFS came through with a placement on a rural farm. There’s animals there K.’s learning to bond with. She’s given structure and support and monitoring. The plan is she may actually return to school in the fall.

That’s some success you can hang your hat — however cautiously — on. But another success I noted was in how Judge Cynthia Devine treated K.

The relatively new judge, who also says grew up on a farm, spoke to this girl — noticed her, and noticed how this young offender with a horrific background replete with social (not criminal) problems spent two further months in custody till the placement came through.

Devine described this development, rightfully, as appalling. Because it is.

Devine saw how K. could barely utter a squeak, and hunched herself over in a defensive posture in the witness box throughout the hearing.

“It is absolutely no wonder that she comes before the court today having armed herself trying to protect her interests … little wonder that she freaked out. It is sad that she was in custody for so long on these charges,” Devine said.

“I’m appalled that this young girl was in custody for two months.”

Devine saw that the whole proceeding was likely just a bunch of gibberish to K., saying it was probably a “lot of noise” to her.

Devine saw K. And I got the sense her soft-touch approach might have made an impression.

To me, given some of the things I’ve seen over the years in youth court, that’s a success.

*[Edited slightly for typos on July 25 at 9:30 p.m. JST]

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When an adult gets pinched for possession of cocaine for the purpose of trafficking, he’s more than likely envisioning prison time as the picture of what his future will look like, for better or for worse.

A juvenile? Not so much.

That’s even when convicted of multiple counts of trafficking an incredibly addictive drug known for its violent spinoffs and contribution to social decay.

That was evident today during a sentencing for a 16-year-old Mad Cowz gang member who pleaded guilty to not one, but two counts of possession for the purpose of trafficking crack since last fall, along with a joyriding charge and several breaches — many of which had to do with his persistence in handing around with other Mad Cowz.

If memory serves, five of the 10 were youths. The teen in question was not one of those picked up in Project Recall.

(The project’s work began in earnest — perhaps co-incidentally, perhaps not — after a Mad Cowz-linked fatal shooting of a rival B-Side gang member in a late-night restaurant in February.)

In any event: the teen sentenced today has been out of custody on bail for all but the last few weeks.

In one trafficking charge, he was nabbed Oct. 28 by eagle-eyed cops on Ellice avenue with a garbage bag with 27 rocks of crack inside it after the youth was seen trying to pitch it, and then going back for it when he thought the cops stopped watching.

He also had $260 cash on him. He’s arrested, released from the youth jail but back in, briefly, by Nov. 15, when he breached curfew and was tracked down with the help of a K9 dog and the police chopper.

And then, most recently, he is picked up again May 21 after being spotted on Beverly Street in the company of one of the Project Recall youth suspects, one who was granted bail after his arrest in the project [also a youth].

This time, he’s nabbed holding 16 rocks of crack and $135 cash and a cell phone.

The teen has no record. Therefore, his sentence was pretty much written in stone the minute he started seeking a Crown position: Two years of supervised probation and a relatively stern talking-to by the judge who cautioned him of what he’d be facing if he was just two years older, and how he didn’t believe the offender when he says he was preyed upon by other Mad Cowz members to take part in the gang.

At the end of the day, we have to wrestle with how this sentence in any way stops him from trafficking again, forces him to take the justice system seriously.

It mystifies me, personally.

(And lest we misplace blame, it’s the Youth Criminal Justice Act which really determines how it all shakes out, not the judge nor the lawyers).

And it’s not that I feel he’s getting off light. It’s just that he’s shown he can’t comply on bail, so I question what good a punishment of probation in the community will do for him — and for us.

I also wonder about the message the sentence sends the gang’s higher-ups, who are watching closely how the system reacts to what they’re doing.

That crack doesn’t just come from nowhere.

The revolving door of youths being effectively used by adult offenders to do their dirty work can’t close if the head honchos are perpetually told that the penalties are so light.

“Gonzos,” a co-accused is reported as saying as he put stuff over the hot stove. “Everything’s on fire.” The entire building was destroyed. Many lost everything except the clothes on their backs.

“As soon as I saw the fire, I ran,” the youth said. “I couldn’t believe the smoke.”

What proof did the Bloodz gang have to show this apartment should be targeted?

They once saw a Mad Cowz member hanging out in there. So, nothing conclusive. Basically just a hunch.

One result: a $1-million dollar devastation, 40 people left homeless, 19 of those people [including a bunch of kids] hospitalized, a pregnant woman’s miscarriage, and a whole whack of terror and fear for innocents who to this day still have trouble sleeping lest they not get out alive again.

Another result? A 17-year-old ‘kid’ now entertaining the option of being able to run his own gang crew because of the notoriety his despicable act of arson gained him.

Another result: Three adult suspects likely to skate easy in court because it’s going to be difficult to prove who actually did what and when.

And the final result: A suspect on the lam for nearly a year now because family members are choosing to hide him from police on some reserve instead of doing the right thing and hauling him into the nearest police detachment to face justice.

Yes. Oh yes. There have been very few crimes in Winnipeg of late that have both intrigued me, sickened me and infuriated me like the gang-retribution arson at 577 Sherbrook St. — perpetrated Jan. 14 in the early morning hours when many of the children, women and men peacefully living out their lives there were likely sleeping and had to run like hell to save their skins.

I wonder how they’d feel today knowing one of the people who caused their misery — he’s 17 today — now stands to gain from it if he so chooses.

From the Crown, referencing the psych report conducted for the youth’s benefit after he pleaded guilty:

“I think the most jarring part of this is his gang membership and how he feels about it … when asked about his future plans regarding gang association, he states he’s not certain what else he wants to do. On one hand, he says he’s considering quitting the gang association. However on the other hand now he could be a leader, have his own gang or crew,” Ericka Dolcetti, quoting from the report.

“And he added as an exclamation: ‘I never had that kind of power!,’“

“He’s not learned from this at all. In fact, maybe this has given him some street cred,” Dolcetti said.

“… He is absolutely a danger to the public,” Dolcetti said today. “He uses his fists and he doesn’t use his words.”

When the group fled the scene, they returned to the safe house and continued partying.

“Yeah, we got them!,” “I lit up the kitchen!,” and “I lit up the couch,” were their happy cries.

When cops arrived a few minutes later, the officers themselves heard though the door:

“I burnt the whole fucking place down — go check it out!,”

The party ended when cops came through the door at gunpoint. The jig was up.

—-

Since the age of 6, the offender in question has been bounced from CFS foster placement to CFS foster placement — as many as 15 times in a decade.

He drinks, yes, but weed is his daily drug of choice (although he’s experimented with cocaine, morphine, ecstasy and Restoril).

“Weed is my best friend … I can’t answer if I’d ever stop,” he told a probation officer.

In recent years, he’s had several family members die. That’s been hard on him.

Due to the constant shuffling around, he has major attachment issues, feels “frequently worthless and has been diagnosed with PTSD due to his upbringing. He lives “vividly in the moment of past trauma,” a leading youth psychotherapist says. He has an “overreaction to threats, real or imagined.”

He says it was a female cousin who “pressured” him into tagging along with the group that morning — pushed him out the door, telling him to go back up his brothers.

“He is remorseful,” his lawyer says.

—

The youth gave an oddly-worded apology for his actions in court. Odd in the sense his words seemed so careful and structured that one couldn’t help but question their sincerity.

“[I] take responsibility on my part — [I] burned down that apartment building. I know it’s irreversible what I’ve done. I’m very remorseful for the people I hurt, the pain I caused and damage I caused [to] people in that apartment building.

Alcohol and drugs had a really bad effect on me that night. I plan to work on that during my stay at the Agassiz Youth Centre. I also plan to work on my social skills, my employment skills and other skills that are available to me at the Agassiz Youth Centre.

I’ve suffered lots, lots of deaths in my life — losing my mom and dad [is a] big problem for me … depression, overwhelmed with anger … I still have major thinking errors.”

—-

At the time of the arson, the youth was on probation and had been AWOL from his latest group home for just shy of a month.

Prior to that, he breached conditions of his probation on Dec. 5, 9, 12, 13, 14, 15 and 16. It wasn’t stated in court why he wasn’t breached and put back in lockup after he came back on the 6th.

Prior to that, between October 21-29, he also breached by not returning to his group home.

Prior to that, on Aug 22-23, he didn’t check in as directed to do so. He was arrested for this and got bail.

—

There’s no real point of presenting any of the above, except a certain professional satisfaction that there will be a record of this somewhere — a record beyond the basic newspaper retelling of what happened, and how such a major crime was dealt with by the system.

This kid is a mess, and you could with a straight face make the argument he never really had a chance to be anything but.

At the end of the day however, he’ll be free 27 months from now. And I hope, sincerely, we’ve seen the last of the worst he’s capable of doing.

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Milner is the provincial jail where all sentenced MOB (Most Organized Brothers) street gangsters are held, court was told Tuesday.

Everyone — the Manitoba government, youth corrections staff, even the young cold-blooded murderer himself — wants to see him transferred out of the young offenders corrections system and into an adult jail.

Everyone but the killer’s mom, that is.

And possibly provincial court Judge Judith Elliott.

It was a rare proceeding in court Tuesday where the now-18-year-old convicted murderer and confirmed MOB gang member was seeking a transfer from the youth facility he’s currently being housed in and into an adult facility to serve out the remaining years on the custody portion of his seven-year-long youth sentence.

The young man — and he is a man now — is serving the time after stepping forward and pleading guilty to second-degree murder for the “senseless and unprovoked” shooting death of young dad Scott MacGillivray in his own backyard in August 2009. This guy was the one who pulled the trigger.

He and a co-accused (the story link above references him — also MOB) had just committed an armed home invasion down the street from MacGillivray’s North End home when McGillivray encountered the pair trying to ditch the gun.

He’s been locked up at Agassiz Youth Centre, the Manitoba Youth Centre or at various times in lockdown solitary confinement at the Lakewood Correctional Centre for youths since his arrest for the killing.

And now, under section 92 of Canada’s Youth Criminal Justice Act, he’s requested a transfer into the adult system, ostensibly because he’s sick and tired of being surrounded by kids and their juvenile behaviour.

Judge Elliott must determine whether it’s in his best interest to go adult [she doesn’t believe it is] or in the public interest to remove him. He can’t just do it, despite being an adult in law.

His mom, as stated above, opposes the move.

“I don’t agree with him going to an adult facility,” she told Elliott Tuesday. “I don’t want him to … [but] he decided that’s what he wants to do,” she said, adding in adult jail, he won’t be at the receiving end of hugs from relatives who want to see him do better.

Yes, she told him, she understands the kids in juvie get on his nerves, but “there are a lot of adults who can be immature too,” she warned him. “Some of them don’t give a shit either.”

A provincial civil lawyer representing the provincial correctional department wants him out of the youth system too, saying his anger issues present a “real risk” to kids in the system with him, that he poses an “increased likelihood of serious harm” if he stays.

Why, just on Sunday, Elliott was told, there was an incident where an inmate complained of being bruised and battered — an incident described by the killer as “horseplay” apparently gone too far. It’s possible he could face charges from it.

“There’s a propensity for unpredictable violence,” the Crown lawyer said. “We see it being safer … having him transferred to an adult facility.”

As well, the province says, the murderer has exhausted all avenues of rehabilitation programming available to him in the youth system.

But if he is, he’s in for a long wait to get a bed at Milner Ridge, the provincial jail where adult MOB gang members are held, a senior corrections official testified.

MOB members waiting months for transfer

Alan Peacock, a chief correctional officer/manager at the Winnipeg Remand Centre told court that there are currently three MOB members at the downtown facility waiting to get a cell/bed at Milner.

Right now, Peacock says, the MOB range at Milner is double bunked and full. Any prospective additions to the range could wait from a week to six months to get there.

Currently, there are three MOB members in the remand centre on the wait list. One of them has been waiting about 3-4 months to get moved to Milner.

There was little talk of the killer disavowing the gang life. And even if he did, he’d have to prove he’s had two years of non-activity in order to be put in general population.

He can’t dodge his gang label, Peacock said.

“That’s the community he lives in,” said defence lawyer Iain MacNair. “He’s going to continue to be exposed to it … rehabilitation right now does not seem to be progressing at a steady rate at Agassiz (youth jail),” MacNair said.

“We can’t just arbitrarily take a gang label off of somebody,” Peacock told Elliott. Even if Corrections did, inmates in jail “have their own communications grapevine” throughout the adult and youth systems to find out who’s who in the zoo and who’s charged with what, he said.

If the killer is transferred — and Peacock has no stake in the game, really — he’s likely to spend all his time at the remand centre on 23-hour-a-day segregation with limited access to programming or recreation because there’s no room to put him while keeping he and other inmates safe.

As it is, he was headed back to youth segregation after court Tuesday because of Sunday’s violence.

Peacock was queried about what programming the killer would be able to access in the adult system. He said while he couldn’t really speak for jails where sentenced prisoners are held, there is more offered — if offenders choose to avail themselves of it.

“It all depends on the individual, we can’t force anybody,” said Peacock. “We can identify and recommend,” but can’t force inmates out of their units and into classrooms or workshops.

Is putting someone who’s just 18 on an adult gang range in his best interest?, asked Elliott.

“If somebody wants to get out of a gang, that’s not going to help them,” Peacock said. “You fall under the hierarchy and leadership of that gang,” he said.

Judge unconvinced — maybe she should be?

Elliott, by the end of the hour-long hearing — she herself is a former probation officer — was blunt about having to possibly take him out of the youth system and onto the MOB range at Milner — when and if he can get there.

“I’m certainly not of the view it’s in his best interest to be transferred to Milner Ridge,” she said.

She asked for a youth correctional official from Agassiz Youth Centre be called to testify before her about the young killer’s case in coming weeks before coming to a decision.

All I say is — he’s 18, an adult. If he wants to go there, let him go — especially if he’s in any way interfering with the potential rehabilitation of a young offender in the youth system.

Even the killer conceded if he’s charged for Sunday’s violence, he’ll be charged as an adult and sent packing to the remand centre.

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The third-ever Golden Crown, handed out to some of the best examples of Manitoba prosecutors trying to deter and denounce unlawful conduct goes to…

John Barr — head of youth prosecutions for Manitoba Justice — for at least attempting to put some backbone into what should happen when youths serving so-called “community supervision” portions of their sentences are breached for thumbing their noses at court-ordered conditions.

Barr recently fought hard to have a provincial court judge’s decision granting bail to a kid accused (but not convicted) of breaching conditions of his 18-month sentence thrown out.

The kid spent a year in jail with the last six months of his 18-month sentence meant to be served under supervision in the community.

He got out in July, 2011 but by October was charged with breaching his court-ordered curfew by his probation officer. (And we all know by now what it can take to get a PO to breach a kid).

However, Barr lost after Justice Brenda Keyser ruled it was unfair to allow adults to get bail on sentence-related breaches but not youths charged under the Youth Criminal Justice Act.

Barr had argued that bail provisions in the YCJA only applied to youths who aren’t yet sentenced. Therefore, the court who granted bail in the first place had no jurisdiction to do so.

The kid’s lawyer argued it would be unfair to subject youths to harsher treatment than an adult might receive; that if an adult serving a conditional sentence can apply for bail in light of a suspected breach, then a youth should be provided the same opportunity.

Keyser agreed, suggesting silence in the YCJA on the subject of bail for kids accused of breaching their sentences had to do with its “liberal construction” — in other words bail or release from custody is always a consideration or presumed.

Under the YCJA, the “least restrictive” sanctions to provide criminal kids “meaningful consequences” is paramount.

“Under the circumstances I find it to be unfair to allow an adult to apply for bail in these situations and not a youth … it would not be consistent with the expressed purpose of the YCJA to interpret the incorporated bail provisions of the Criminal Code as restricting their applicability only to young persons charged with an offence,” Keyser wrote.

The real kicker is that if the kid is ultimately convicted of the breach, he’ll most likely get probation or even a fine, so even if it’s proven he thumbed his nose at the court, it won’t truly deter him from doing it again.

That’ll teach him.

Regardless of the loss, I salute Mr. Barr for his efforts. We all should.

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Manitoba was the only province in the *country* where the average count of youths in provincial custody — read: on remand in jail, serving sentences or in the community on probation or community supervision — went up in 2010, the latest data available from Statistics Canada.

The data was released by the federal agency last week, and appears to show Manitoba being a leader when it comes to the number of criminally-involved kids in the system.

The data is an average monthly “in count” of youths in custody: Here’s what it measures, according to Stats Can

Total actual-in counts represent the sum of sentenced, remand and other status counts and exclude inmates temporarily not in custody at the time of the count. Total actual-in counts include provincial director remand not included in the remand and other temporary detention counts.

I make no assumption of what this data actually means, other than it appears to reflect to some degree the seriousness of youth crime in Manitoba, given that being locked up is always a last resort for judges under the Youth Criminal Justice Act. Under the Act, all reasonable alternatives to custody must be looked at before actually locking the cell’s — sorry, unit ‘s— door.

However, without a more comprehensive breakdown of how many youths recorded in the average were on probation or community supervision as part of a sentence, that’s a guess on my part.

But the also shows a massive disparity between the number of kids in provincial custody in Saskatchewan, Alberta and British Columbia.

Again, without wanting to jump to some wrong conclusion, it appears where there’s smoke there’s fire.

Youth crime in our province is a major, under-reported issue. But I’ve always said that.

Here’s the data for your perusal. Comments and thoughts welcome:

(Courtesy Stats Canada)

Here’s a link to the statistics report, which was not subjected to an analysis by the agency. You can read how the data was sourced and the methodology there.

***(excluding Quebec, which did not report 2010 numbers).

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—

I note with some irony that this post marks number 204 for this blog since its inception — 204 being the Manitoba area code.

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The second-ever Golden Crown, handed out to some of the best examples of Manitoba prosecutors trying to deter and denounce unlawful conduct goes to…

Manitoba prosecutor Courtney St. Croix — for her handling of a particular youth court case that is, in my experience, exceptional in its thuggery.

Some preface is needed:

It would be very easy for Crowns (I’d surmise) when handling certain youth cases anyways, to simply throw up one’s prosecutorial hands and be done with things. Make a deal for probation and close the book on it.

The YCJA, and its emphasis on rehabilitation of young criminals first can (and some in the public overtly agree) thwart some citizens’ views of actual justice being done.

Those arguments are always met with a version of the same argument: “They’re just kids, and we don’t give up on kids.”

Now while that’s a worthwhile credo, sometimes kids do, to put it mildly, the darndest things.

—

Such was the case of now-16-year-old ‘S’, who faced the music Wednesday for her participation in two robberies in summer 2010.

My Winnipeg Sun story is here for the gist of things and to give the full flavor from the victim’s perspective of how serious the crime was, here in the robbery capital of Canada.

(Aside: How many other untold horror stories like this are out there?)

What’s interesting about the case is that the co-accused got a short, sharp shock in jail, despite her lesser degree of participation. Held the victim down and gave her one kick.

Not so for S. She walked away Wednesday with two years of supervised probation, admittedly with some stringent conditions for the first few months.

Despite randomly picking a stranger to attack, brutally beat and strangle for no apparent reason — two days after robbing another guy behind a 7-11 — S won’t do any real time.

Quoth the victim:

“The experience was terrifying. I remember pure terror and thinking I may die because people I have never met randomly decided that it might be so,” the victim, her voice often choking with emotion, said. “I vividly recall looking into (her attacker’s) eyes and saying, ‘Please don’t do this,’ right before she threw the first punch.”

Her pleas made no difference, she said. She told court she remembers being kicked in the head countless times and strangled with a scarf and a headphone cord as she lay prone, pinned to the ground by a co-accused — another teen girl. She eventually blacked out, she said.

The judge in the case, Sandra Chapman, cited her lack of criminal record, a somewhat positive PSR and a show of remorse as being among the reasons to keep her out of the MYC.

But I can’t help but feel it was the presence of the teen’s cooing newborn in court that really paved a jail-free road for her.

“I cannot ignore the importance of a mom to a baby at early stages,” Chapman said, who added putting her in juvie jail may simply aid in her re-involvement in crime.

All that aside — Crown attorney St. Croix walked into court that morning and asked — no, pushed — for the girl to go to real jail for what what was labeled a serious violent offence — a Crown request Chapman called “not unreasonable” in light of S’s brutal act.

And for that, Ms. St. Croix garners the second-ever Golden Crown award. Thanks for trying.

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Sgt. Smith to teen shoplifter, by phone: ‘This is Sgt. Smith of the Winnipeg police. I understand you are being held for shoplifting. I am hereby warning you.’

Teen shoplifter: ‘Huh?’

Smith: ‘I am warning you.’

Teen: ‘OK?’

-end conversation

[Three days later, different store, same cop, same shoplifter, by phone]

Sgt. Smith: ‘This is Sgt. Smith of the Winnipeg police. I understand you are being held for shoplifting. I am hereby cautioning you.’

Teen: OK.

Sgt. Smith: ‘You are hereby cautioned.’

-end conversation

It’s often stated that the kids who actually wind up in custody at the youth centre and have to go before a judge are just the top of an iceberg in the city in terms of the number of offences committed by kids.

Under the YCJA — and its current focus on rehabilitation and ‘meaningful consequences’ for kid offenders — there’s a huge number of diversion tactics, known as extra-judical measures and sanctions that are often used as a first, last resort to scare non-violent kids from crime and keep them out of the court system.

Will the police consider these measures for me?

Yes. A police officer must consider using an extrajudicial measure if the offence is non-violent and if you have not been found guilty of a previous offence.

The Youth Criminal Justice Act sets out as a key principle that it should be presumed that an extrajudicial measure will be sufficient to hold a young person accountable for his or her behaviour.

These sanctions can range on a quasi-sliding scale from a police warning and caution [as evidenced above from a real-life example] to Crown warnings and cautions and voluntary referrals to programming etc.

In other words, it’s a number of ‘first, last chances’ before actually being charged with a crime and having to come to court.

While Bill C-10, the federal government’s omnibus crime bill, won’t remove these measures [that I know of], it does propose to make a major change that should prove revealing regarding their effectiveness.

Judges will now be told of them in court, and Crowns can rely on prior uses of extrajudicial measures as a reason for jail in indictable [serious offences]

Today, I’ve yet to hear of a judge be told of a kid’s pre-criminal history, of efforts made by police and justice officials to give them chances to get right or else.

The YCJA reads as follows today:

Clause 173: Relevant portion of subsection 39(1):

39. (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

…

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or …

And is set to be changed to:

A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

It’s another, dare I say, clever way of the federal government to try and put some sharper teeth into our youth justice laws.

It’s also one I have yet to hear word one about.

The question is: does so-called small crime like shoplifting pave the way towards more substantive offences?

Some authorities say yes — and the tale of ‘Burglar Jimmy’ is one example of this.

The only issue I can see with the proposed rule is that now cops and Crowns will have to keep detailed records of how many times they gave Jimmy a chance before he burned down the house or mugged the maid. I’m not 100 per cent sure they do right now.

[See comment below].

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As an aside: Could we please legislate in C-10 the addition of that peculiar British vernacular where being convicted of a crime, or getting arrested is referred as: “Got done for?”

Example: “I got done for drink drive when I was 18 and never got my license back,” said Ms. Butterfarthing.